The National Labor Relations Board and Consumer Financial Protection Bureau signed a memorandum of understanding March 7, establishing their intention to share information and “address practices of employer surveillance, monitoring, data collection and employer-driven debt,” a press release from the NLRB explained.
“Employers’ practices and use of artificial intelligence tools can chill workers from exercising their labor rights,” NLRB General Counsel Jennifer Abruzzo said in the release. “As our economy, industries and workplaces continue to change, we are excited to work with CFPB to strengthen our whole-of-government approach and ensure that employers obey the law and workers are able to fully and freely exercise their rights without interference or adverse consequences.”
The federal agencies have grown increasingly interested in employers’ use of technology over the past few years, highlighting issues like AI’s potential for discrimination and the use of employer surveillance to intimidate.
In September, the U.S. Equal Employment Opportunity Commission focused on tech concerns during a listening session meant to help it develop a strategic enforcement plan. One speaker mentioned the power imbalance surveillance created for workers in industries like warehousing and retail, where workers were made to wear tracking devices and hit pre-established targets. The employees were sometimes fired for not meeting targets and avoided taking breaks or going to the bathroom, the speaker noted.
While the MOU did not specify which practices the agencies would work to target, Abruzzo released a memo in November that pointed to several issues in which the NLRB had taken an interest — and asked the board to develop a framework to address. Specifically, she noted that the use of surveillance such as photography and screen- and voice-recording devices can interfere with workers’ ability to exercise their National Labor Relations Act rights.
“In appropriate cases, I will urge the Board to find that an employer has presumptively violated Section 8(a)(1) where the employer’s surveillance and management practices, viewed as a whole, would tend to interfere with or prevent a reasonable employee from engaging in activity protected by the Act,” she wrote. “If the employer establishes that the practices at issue are narrowly tailored to address a legitimate business need — i.e., that its need cannot be met through means less damaging to employee rights — I will urge the Board to balance the respective interests of the employer and the employees to determine whether the Act permits the employer’s practices.”
“Bad actors too often try to escape oversight by dodging between regulatory gaps and supervisory authorities,” CFPB Director Rohit Chopra said in the March 7 release. “Today’s agreement will fill in cracks that may otherwise have let practices or products harmful to workers slip through.”
